Internet Access Limitations and Terrorism
Our first impulse when considering Internet access a human right is to think of it in a “common-sense” way — which looks upon the concept of human rights as something invulnerable and, therefore, an absolute. As stated before, this first impression seems simple, even though it is completely misleading — human rights are not about absolute positions, but about how limitations on them may be legitimately justified by social and public values. Contaminated by that first impression, a natural tendency would be to consider that no one should be prohibited from accessing the Internet, due to its remarkable value to human culture and development in general. Even though the latter is true, it does not mean that use of the Net can’t be restricted — it only means that limitation can happen, but not in an arbitrary way.
Consequently, there are two premises we may adopt when dealing with restrictions to Internet access: 1) there is no such a thing as immunity from restrictions, since no human right is an absolute and 2) the restriction cannot be too intense or extreme in order to preserve a minimum of the human right’s core. So, limitations to a human right can be placed, but there must be a legitimate procedure for them, under the proportionality perspective, which takes us to the three to four steps referred by Sweet and Mathews: 1) legitimacy, 2) suitability/adequacy, 3) necessity, 4) proportionality in the strict sense.
Therefore, on the clash between Internet access and the value “security”, we must consider that the restrictions should pass the test whenever they are actually intended to enhance safety and there are no deviations from this stated objective. Although, if the government starts to impose restrictions on the pretence of making its citizens secure, but it is actually using a specific policy in a discriminatory way, the human right limitation will not pass the proportionality test, due to the lack of legitimacy. Take a hypothetical situation in which the government imposes abstract restrictions that are applied in a discriminatory and arbitrary way, such that they are applied more strictly with certain ethnic groups or foreigners and less strictly with others.
Since the first test is confirmed, it is necessary to analyse the suitability/adequacy of the limitation, which means that the restriction on Internet access is not only rationally related to the security goal, but it also has a potential of actually improving security. In addition, on the necessity test, one must scrutinize if the restriction imposed by the government on accessing the net is not excessively intrusive, or more than necessary for obtaining the goal of security. Said in another way, the necessity step imposes government to always use the least restrictive instrument possible, if it has the same efficacy as the more intrusive one. Finally, on the proportionality on the strict sense, the public policy (restriction on accessing the Internet) must be inspected as a matter of importance and intensity. This means that there must be a proportional relation between how intense the restriction is and how important the human right is, on a scale considering the concrete facts.
Surely, the last step is not as objective as the other three, since it presupposes classifying the restriction according to an intensity scale (for example: (1) non-intrusive, (2) intrusive and (3) very intrusive restriction) and also defining the importance of the human right on a concrete facts basis (i.e. (1) less important, (2) important, (3) very important). In this abstract consideration, the limitation would be valid if there is a direct proportionality between the importance of the right and the intensity of the restriction. So, a restriction that is (3) very intrusive would be justified for a (1) less important or (2) important right, but possibly not for a (3) very important one. In the same way, a (1) non-intrusive limitation would be justified independently on the weight attributed to the human right.
But how can we determine exactly when a restriction is non-intrusive or very intrusive? How do we classify a human right as “less important” or “very important” in the actual scenario? There is no absolute answer or guaranteed pathway to answer these questions, other than that they must be construed argumentatively, interpreting all the relevant aspects. However, the proportionality test can be combined with Lessig’s framework for restraints as a way of helping the interpretation of these relevant aspects.
Hence, when dealing with Internet access restrictions due to the value of security, there are two specific restraints on the Lessig framework that should be highlighted: Market and Architecture. The first one is pertinent because the cost of access may determine how easy it is for data to be shared and also on the grounds of the possibility of terrorists gaining control of specific access providers. The second may determine the very shape of technology used by the access providers — one that can facilitate or hinder the collaboration of private actors mentioned in the next topic. Of course, that Law (either hard or soft) plays a crucial role in the matter, since this is the force of regulation that will actually create the context for imposing the others, and Norms may contribute or disturb the acceptance of some restrictions.
Then what kind of access limitations could be pertinent to the enhancing of security? There are some clear and fairly obvious situations, like, for example, forbidding a convicted terrorist to use the Internet while he serves his time. When it comes to extending this prohibition after the fulfilment of the jail time, however, the matter becomes more intricate. If the goal is to avoid the continuity of criminal behaviour, the restriction could be considered legitimate and also adequate, since terrorism has been using the widespread Internet for planning and executing attacks. The limitation could also pass the necessity test, since there wouldn’t be a less intrusive way of preventing new terrorist acts by that person, considering the popularity of the Net among terrorist groups. When it comes to the proportionality test in the strict sense, the hypothesis shows an important right — not very important in the case, since there are other forms of communication besides the Internet that would still be available. Conversely, we may consider the restriction to be non-intrusive, precisely because there would be still another instrument that could be used to communicate. Therefore, this could be considered a valid restriction.
But what if the competent government authorities have reason to believe that, instead of preventing the convicted and recently freed terrorist from accessing the Internet, they could better enforce security by monitoring him, in a way that could eventually lead to other malefactors? This takes us to ISPs’ collaboration, the subject of the next section.